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exam3 Flashcards

1
Q

What is compliance?

A

Adherence to precedent by officials directly affected by decisions.

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2
Q

What is impact?

A

Adherence to precedent by individuals not affected by decisions.

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3
Q

What is an example of historical non-compliance?

A

WORCESTER v. GEORGIA

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4
Q

What are the details of WORCESTER v. GEORGIA?

A

Issues of licensing for non-tribal members to live on Native American land; Lower court upholds the convictions; Supreme Court overturns decision.

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5
Q

Who are the actors involved in implementation?

A

Interpreting population, implementing population, consumer population, and secondary population.

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6
Q

What is the interpreting population?

A

Actors that must determine what the decision says.

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7
Q

What is an example of the interpreting population?

A

Lower Court Judges (often trial courts).

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8
Q

What is the implementing population?

A

Actors that must incorporate decisions into future action.

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9
Q

What is an example of the implementing population?

A

Police officers, prosecutors, school officials, etc.

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10
Q

What is the consumer population?

A

The actors or individuals who receive the benefit of the decision.

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11
Q

What is an example of the consumer population?

A

Criminal defendants, the entire population (tax cases).

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12
Q

What is the secondary population?

A

Residual population (everyone not included above).

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13
Q

What is an example of the secondary population?

A

Government officials, interest groups, media, and the public at large.

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14
Q

What is the impact of higher court decisions on lower courts?

A

Trial courts normally assumed to enforce existing norms rather than making policy; assumption is that the Supreme Court renders a decision and the lower courts will fully comply.

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15
Q

How have recent examinations of cases shown that existing norms are not always enforced by lower courts?

A

Lower court judges possess a great deal of independence from appellate court judges; judges will not blindly follow unless the conditions are favorable; precedent exists on both sides of every legal argument.

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16
Q

What is judicial activism?

A

The idea that the behavior of judges and their rulings are suspected of being based on personal opinion, rather than existing law.

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17
Q

What is the discretion of federal judges?

A

Life tenure, rare disciplinary actions, virtually no impeachment, and no reliance on appellate courts to keep their job.

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18
Q

What is the discretion of state judges?

A

No reliance on appellate court for job; only need to keep electorate satisfied.

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19
Q

What are the characteristics of higher court rulings?

A

Vague and ambiguous language; often deal with complex issues that are difficult to fashion clear policy; majority opinion is written as a compromise to accommodate several judges; informational spread of new rulings/decisions is slow; poor legal training (state and local judges).

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20
Q

What is the Clear and Present Danger Test?

A

Law should not punish speech unless there was a clear and present danger of producing harmful actions.

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21
Q

What is defiance in the context of lower courts?

A

Rarely used by lower courts - increases probability of reversal.

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22
Q

What is disposal on technical grounds?

A

Rule on a technical or procedural question to avoid having to apply the policy.

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23
Q

What is narrow application?

A

Only applies the narrow aspect of policy to the current case enforced; justified that factual patterns distinguish current case from precedent.

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24
Q

How is compliance often viewed?

A

Broadly as possible to add authority to precedent.

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25
Can courts overrule an amendment?
False.
26
What are the strategies employed by lower courts?
Defiance, disposal on technical grounds, narrow application, and compliance.
27
What does it require to overrule an amendment?
Requires the consensus of the state legislatures (only 6 cases have been overturned with amendments, with 4 out of 6 being on voting rights).
28
What are the 4 congressional responses to judicial action?
Amend the constitution, create additional statutes, attacks on judges, and ignore rulings.
29
How can Congress create additional statutes?
By clarifying legal rules and altering existing norms; the issue is that new laws can be overturned as well.
30
How can Congress make attacks on judges?
Verbal denouncements, threats of sanction or impeachment, and confirming new judges with different ideologies.
31
What are executive responses to judicial action?
Bully Pulpit and Justice Department Operations.
32
What is an example of an executive response to judicial action?
Brown vs. Board in Arkansas (proposing legislation against the courts) or FDR court packing ('switch in time that saved the 9').
33
What is the bully pulpit?
Presidents can use the high visibility (speech) of their office to give support to, or away from, judicial policy.
34
What are the impacts of judicial policies?
Racial equality, criminal due process, abortion, and sexual privacy.
35
What is the status of racial equality in the courts?
Increased in the courts but now has decreased with current courts.
36
What is the status of criminal due process?
Increases over the years.
37
What is the status of abortion rights?
Roe v. Wade, Webster v. Reproductive Health Services, and Planned Parenthood v. Casey (turn against abortion precedent recently); abortion protections now all stripped.
38
What is the status of sexual privacy?
Sodomy was criminal, later became legal, and then there was the legalization of same-sex marriage.
39
What is regime theory?
Justices are nominated by elected officials and therefore it is an indirect but sufficient link to chain the Judiciary to public will.
40
What is drift theory?
Society evolves. Since justices are people, it is expected that their opinions will move or drift along with the general public.
41
What is strategic maintenance theory?
Justices respond to the public to protect the court's institutional power and legitimacy.
42
What are the limits on judicial power?
Internal checks, institutional checks, state, separation of powers, and the people.
43
What is judicial self-restraint?
Internal checks of not wanting to push policy as far as it could go.
44
What are institutional checks on judicial power?
Written opinions, juries (trial courts), multi-member panels (appellate courts), and hierarchy (comes into place in the strategic model).
45
What are the 2 types of support for the court?
Specific support and diffuse support.
46
What is specific support?
Short-term support or support for/opposition to individual decisions.
47
What is diffuse support?
Long-term support from the institution.
48
What do the forms of support create?
A well of support so that overall evaluations of the Court are relatively positive and 'apolitical'.
49
Why would public opinion matter?
- Need for legitimacy - Judges are people too - Changes in membership on the Court - Courts are part of the 'dominant political coalition'.
50
What are we trying to explain with the model?
Why do judges make the decisions (and create the law) that they do?
51
What is a model?
A model is a simplification of reality, designed to explain/predict some phenomenon of interest. Its focus is on one or more key factors, while excluding the larger set of potential [idiosyncratic] explanatory factors.
52
What are key features for a good model?
Explanatory, parsimony, falsifiability, and generalizability.
53
What is explanatory power?
Does this model explain what it is claiming to explain?
54
What is parsimony?
Is this model the simplest way to explain? Does this model use too many variables/steps to explain the process?
55
What is parsimony defined?
'The state should only use the most minimal intrusion into a person's liberty to achieve broader goals.' 'The simplest of the two theories is preferred.'
56
What is falsifiability?
Can we prove that the assertion/model is false? Does some observation contradict our explanation?
57
What is generalizability?
Can we generalize and apply our theory to other populations or occurrences?
58
What is judicial reasoning?
A case comes before a judge, they examine the facts of the case, and they locate precedent case(s) with similar facts and apply it to the current situation.
59
What questions to ask for judicial reasoning?
What if the precedent is not found? What if the case facts do not match? What if the reasoning does not match?
60
What is ratio decidendi?
'The rationale for the decision' (Latin) - Established principle of the law.
61
What is obiter dicta?
'By the way' (Latin) - surplus language that is not essential to the decision and does not establish precedent.
62
How is obiter dicta present?
Judges seldom write in clear or concise language; judges like to change their minds; judges will sometimes plant dicta in opinions hoping to later use it/cite it as precedent later.
63
What is an example of obiter dicta?
Hammer v. Dagenhart.
64
What is about Hammer v. Dagenhart?
Hammer struck down a child labor law (law was trying to prevent use of products made by child labor) saying that Congress did not have the power to regulate working conditions under the Commerce Clause. Justice Holmes in dissent said that this was a bad decision; goods manufactured in one state and sold in another was interstate commerce and therefore could be regulated. Court came back and used the dissenting opinion (essentially deemed as dicta) to justify overturning the decision in U.S. v. Darby.
65
What is the legal model also known as?
Decision making for babies.
66
What are the main components of the legal model?
Plain meaning, legislative and framer's intent, and precedent.
67
What is the plain meaning rule?
Problem lies in the lack of clarity in language, multiplicity of definitions, interpretation, etc.
68
What is legislative and framers intent?
Construing statutes or the Constitution according to preferences of those who drafted it.
69
What are the problems with framer's and legislative intent?
Historical record is often sketchy; who are the Framers or Legislators? How is intent determined?
70
What is precedent?
Refers to previously decided court cases.
71
What is stare decisis?
'Let the judgment stand' - principle of applying precedent to current cases.
72
How do we know if precedent influences decisions?
Mere fact that judges cite precedent is not evidence that precedent influences decisions.
73
What are the ways of treating precedents?
Distinguish case based on facts, limit the principle discussed, ignore the precedent, overrule the precedent, expand the precedent.
74
What is the attitudinal model of judicial decision?
Simply put, Rehnquist votes the way he does because he is extremely conservative; Marshall voted the way he did because he was extremely liberal.
75
What are the two basic components of the attitudinal model?
Attitudes and case facts.
76
What are attitudes in the attitudinal model?
Represents the ideological preferences of the judges.
77
What are case facts in the attitudinal model?
Represents the stimuli that allows positioning of the case along an ideological dimension.
78
What are goals in the context of judicial decision-making?
Desirable outcomes that actors attempt to achieve through the choices they make.
79
What are rules in the context of judicial decision-making?
The structure in which decision making occurs that determines the set of available choices.
80
What is docket control?
A legal-specific term that refers to entering, organizing, tracking, and controlling all the appointments, deadlines, and due dates for a legal organization.
81
What are situations in the context of judicial decision-making?
The decision-making context.
82
How are judges able to decide cases according to the attitudinal model?
Through goals, rules, and situations.
83
In the strategic model, how do actors have goals?
Can rank order preferences in terms of their goals; preferences are transitive; goals can include a variety of things (personal ideology, promotion, time management, policy, etc.).
84
How do actors behave strategically to achieve goals?
By maximizing their utility.
85
How are interactions between actors structured by institutions?
Actors are limited in their choices (especially in courts) because of requirements like the rule of 4, the need for a 5 vote majority to set precedent, etc.
86
What is Arrow's Impossibility Theorem?
It is impossible to arrive at a collective decision from a set of arbitrary individual choices without violating one of the key rules of collective decision making.
87
What makes the strategic model different from the attitudinal model?
- Assumes that judges have policy goals. - Unlike the attitudinal model, it does not assume that liberal judges will all vote liberally, and conservative judges will all vote conservatively.
88
What are the two types of voting in the strategic judicial model?
Sincere voting and sophisticated voting.
89
What are the phases to engage in strategic behavior?
Granting Cert, Conference Voting, Opinion Writing, Final Votes on the Merits.
90
What is rational basis?
The loosest of standards concerning judicial scrutiny. The constitutionality of the law in question is tested to see whether it has a reasonable relationship to a legitimate state interest.
91
What is intermediate scrutiny?
The law in question is required to be substantially related to an important government interest. Often used to evaluate laws about gender (a 'quasi-suspect' classification) regulations.
92
What is strict scrutiny?
The law in question is required to be narrowly tailored to address a compelling state interest. Laws concerning race (a 'suspect' classification) are always evaluated on this standard.
93
Does the attitudinal model recognize that there are sometimes more than 2 options?
True.
94
What is the limitation on judicial power?
The people.

judicial system (2 decks)

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